Wills and estates lawyers are developing practical guidelines to manage Canada’s aging population.
When Kavina Nagrani spotted “Legal Capacity, Decision-making and Guardianship,” a recent report by the Law Commission of Ontario, she was immediately attracted to it.
“I consider myself an elder law lawyer, so everything to do with aging and all things to do with elders as they approach the law is what I do,” says the Loopstra Nixon LLP associate. “I found the report really reflected what I see in practice from my clients.”
The report and 58 recommendations, released in March, is the first comprehensive analysis of the province’s legal framework in this area in almost 30 years.
After reading it, Nagrani’s first thought was “finally, the entire public is starting to scream about all these issues with our aging population and people are paying attention. Now that we have this population, these issues affecting older adults are coming to the forefront.”
The 2016 census from Statistics Canada noted that, for the first time ever, there are now more people over the age of 65 in Canada than under the age of 15. The numbers vary by province, with the Atlantic provinces seeing a sharp decline in the number of people aged 15-64 and a strong increase in those over 65.
Robin Aitken, a partner at Cox & Palmer in Charlottetown, says that because Atlantic Canada’s population is aging at a faster rate than it is across the rest of the country, “we’re going to see these issues more and more.
“Our legislation, like Ontario’s, is very black or white — it either purports to cover somebody who has capacity or doesn’t have capacity — so what we’re lacking is that middle ground where someone might have impaired capacity,” Aitken says. The legislation and likewise the documents “don’t really support” the kind of assisted decision-making some elder adults might need, she adds.
Charlotte McCurdy, a partner at Taylor McCaffrey LLP in Winnipeg, who is the current chairwoman of the Manitoba Bar Association’s wills and estates section, says highlighting issues to the Manitoba Law Reform Commission is something she plans to do.
“There are inconsistencies we’ve been identifying in the last few years and I certainly want to raise the issue on behalf of our section and say look, we as practising wills and estates lawyers have identified all of these problems and the acts haven’t been looked at since the ’90s — it has to be reviewed,” McCurdy says, adding she would like to see a thorough review similar to what Ontario did.
The last time Manitoba looked at its legislation in depth was in 1999, when its law reform commission released the report “Informal Assessment of Competence.”
One of the key things that was identified in Manitoba’s 1999 report — and was also identified in this year’s Ontario report — is that “very often the person assessing capacity has no formal training,” says McCurdy. One of the recommendations was that the Manitoba government should adopt guidelines for those determining competence on a regular basis.
“To my knowledge, none of these guidelines have ever been developed,” she adds. “They also talked about formal training for people who do the assessments and as far as I can see that’s never come to fruition either, at least for lawyers.”
But McCurdy notes there is mandatory training on how to deal with capacity issues, including how to assess capacity, in the health-care field.
Nagrani recently completed the Osgoode Certificate in Elder Law, a program at York University in its fourth year that bridges the gap between health care and law as it affects older adults.
“It was a mix of the health-care world and lawyers, and I can’t tell you how beneficial it was to hear both sides of the coin,” she says.
In what she considers a “new phenomenon,” there are now private care companies out there for seniors who need help but don’t have family members or other trusted people on which to rely. While there are many long-standing services for people without substitute decision-makers who need help with their finances, for example, the report notes there haven’t been many options or knowledge of options on the personal care side.
Silver Sherpa is one of the companies with which Nagrani has aligned.
“I’ve been partnering with them because I understand how to help the senior with all the legal documents that they’re going to need to get in place and I can help advise the senior, and then I know on the other side who’s implementing the strategies or whatever the requirements are for the senior that it’s a reputable private care company that can navigate the system and that’s looking out for them. It gives me more confidence that my client is being looked after.”
McCurdy says there are a few similar organizations in Manitoba, including organizations that gather links to resources and house them in one spot. One website had a local law firm on the site and said if you have a legal issue call this firm.
“My firm hasn’t yet made a formal connection like that with any of these organizations, but it’s something we’ve talked about doing to have that reciprocal referral or just bouncing ideas off each other because there are so many issues with financial abuse and other elder abuse that come up,” McCurdy says.
While there is something to be said for the boots-on-the-ground approach, Aitken highlights that capacity is still a legal question.
“Doctors not being lawyers don’t sometimes grasp that it’s task-specific, so they approach a patient with a view to determining do they have capacity or do they not have capacity. Even the capacity to make a will and the capacity to make a power of attorney are two different legal tests so doctors would not necessarily appreciate that.”
Aitken says when capacity is in question or a client raises a certain number of red flags, “sometimes we’ll get a gerontologist or a family physician to have a visit with the client and give us their perception of capacity.” While that is helpful, it’s not a legal assessment of capacity.
“That’s the lawyer’s job,” she says, but adds “it would be helpful if the doctors saw there was incapacity and if there was nobody to call on, they had some sort of directed avenue.”
McCurdy also points out that “we have the third lowest number of geriatric doctors in Canada, so even from the medical perspective — if we’re looking for doctors to assist us in helping to assess capacity, we have another problem there because they don’t have enough doctors in that specialty. It’s going to be more of a problem as the baby boomers continue to age — there’s just so many of them.”
Nagrani says lawyers should be making changes to their processes that make sense, whether they’re in the law or not. Looking at the Ontario report’s recommendations, “the ideas are so practical they don’t need to be law to make a difference,” she says.
One example she gives is the power of attorney documents. The law says if you’re a substitute decision-maker for somebody under a power of attorney, you should keep accurate records — but that’s too vague, Nagrani argues.
“In my view, you should be reporting to whom? Not only when asked or when there’s a lawsuit and you’re served with papers. Maybe the document should say twice a year you’re to prepare a statement of my assets for my accountant or to your siblings or to my friend.”
Aitkin says that recommendation stuck out to her as well as a “really easy fix and it doesn’t require a legislative amendment, which in some provinces is harder than others.”
“If lawyers are using precedents that don’t evolve with the practical realities that are occurring, then I think we are doing a disservice to our clients,” Nagrani says.
“We all talk about best practices,” says McCurdy, noting her firm’s wills and estates group “always toss around practice issues, [e.g.] I had this issue, what would you have done?” McCurdy sees a similar process at her bar association meetings.
“Even though the legislation doesn’t tell us we have to, we identify these recurring issues we all keep coming up against” and decide collectively how to approach them going forward, she says.
The bottom line, Nagrani says, is that like in any other area of the law, lawyers are realizing “we can’t give advice in a vacuum.
“Especially with the older adults, I think if you’re not connected to the person’s doctor and health-care provider and they’re not connected to the lawyer or financial adviser or accountant, then we’re really doing the client a disservice.”